Standards in Public Life I

Slightly over a month ago, The Hindu carried a short article about the Chief Election Commissioner, Mr. Navin Chawla, seeking an amendment to Article 324 of the Constitution. Specifically, he had urged for an amendment to clause 5 of the Article to bring all election commissioners on par with each other and to make a case for his call, he cited two instances, one involving the leonine T.N.Seshan and the other involving Chawla and his own predecessor, Mr.Gopalaswami.

As for the first incident, those interested may read this judgment of the Supreme Court interpreting Article 324(5). I then searched for literature to understand the constitutional underpinnings of the Election Commission of India, when I stumbled upon the fifth Report of the Committee on Standards in Public Life in the United Kingdom.

 This report discusses threadbare the standards to be expected of political parties beginning with the seven principles of public life to be observed by holders of public office- selflessness, integrity, objectivity, accountability, openness, honesty and leadership. It occurred to me that in the backdrop of the current fiasco involving Shashi Tharoor and a few other political bigwigs whose names are bound to surface over and over again, this report assumes greater significance.

Selflessness- According to the report, holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

Integrity- Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

Objectivity- In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability- Holders of public office are accountable for their decisions and actions to the public

and must submit themselves to whatever scrutiny is appropriate to their office.

Openness- Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

Honesty- Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership- Holders of public office should promote and support these principles by leadership and example.

Sounds very utopian given the situation here, right? Makes one wonder if there'll ever come a time when these ideals/virtues are taken seriously in this country. If someone were to talk of applying these ideals in public life in India, somehow I get the feeling that the speaker is bound to be scoffed at and ridiculed, with some of us saying “you can’t survive in politics if you believe in these”. Stand Corrected! “you can’t survive in Indian politics if you believe in these” is more like it!

What else would explain the failure of people of like T.N.Seshan in elections? What explains the fact that the majority of Indians preferred Nehru over Patel for the post of the Prime Minister? Some might say that both Patel and Seshan lacked charisma(!) I'd like to know what have charismatic leaders done for us or even themselves? Shashi Tharoor oozes oodles of charisma (and this speech is proof of that), but with all due respect to him and his “unblemished record of public service”, his short stint in the Union Cabinet is replete with PR goof ups! 

As for Nehru, his aspirations of becoming a global statesman were cut to size by a shrewd peasant with a silly name called Mao Tse Tung, which indirectly caused Nehru’s untimely death. And let’s not forget that ultimately the country had to pay the price for their charisma in the form of loss of dignity and territory. So much for charisma...

But then, the point is not to vilify any of these undeniably great leaders. The point is that people need to start probing beyond mere face value and should restrain themselves from falling for looks or accent or lineage or anything else superfluous to the task at hand. What must matter is the person's ability to bring tangible and lasting change for the good in the lives of those he represents, if he is given an opportunity to walk the corridors of power.

The person must know how to get the best deal for his people, both in the short and long runs. More importantly, the question must be, does the person have it in him to take a strong call in the interests of his electorate even if it (the electorate) does not agree with his stance? Not surprisingly, these questions do not figure in our discussions because they are not issue-centric, they are individual-centric.

There’s a reason for this which most of us might find unpalatable and politically incorrect. Democracy in India has a different meaning altogether, our interpretation of “Live and Let Live” rarely finds parallels anywhere else other than in the sub-continent. We seem to think that as long as we are given a free hand to do whatever we want and in any manner we want, we live in a democracy. What this means is that every possible tradition which defies logic, and every atrocity thus far perpetrated must be allowed to continue, in the name of democracy. 

The moment the State steps in to straighten things out, it becomes draconian and dictatorial. Probably, most of us need the concept of a State only to keep this huge piece of earth together under one name so that we get a larger territory to continue the same (rotten, decadent and parasitical) way of life. (This again seems to explain why we keep electing a Government which has mastered the art of keeping almost everyone happy by doing nothing at all and just letting things be.)

It appears that this way of life or thinking is common to the people of this part of Asia, meaning India, China, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan and to a nominal extent Taiwan. Last April, Jackie Chan seemed to think on these lines only to be voted the least trustworthy celebrity of Hong Kong.

Not for a moment am I suggesting that this pattern of thinking and living is inherent to our culture, which some think is fashionable to do. The past can be blamed only to an extent; beyond that, we are accountable for the consequences of our actions because, culture is transient since people are transient.

If at some point in our history, invertebracy has crept in and has firmly entrenched itself in our national character, it does not give us or anyone the right to paint our entire past and heritage with the same brush. The true test of our core nature would be this period of transition that we are not just witnessing, but are participating in as well.

If I sound like I have problems with democracy, then either the reader has not understood my point or I have not been successful in communicating my point clearly. All I am saying is that unless people stop equating democracy with chaos and unfettered reign of the individual’s whims and fancies, democracy will be a monumental failure in India in the times to come.

If people have problems with the State imposing discipline on them, then they must learn to discipline themselves, because there is no way discipline can be altogether thrown out of the window.

Do I sound like a martinet? Oh I know the reason, it’s the word “discipline”... 

Of Bhishma and Gandhi, Duryodhana and Jinnah

Living alone, sometimes, has its benefits. It gives you the luxury of pursuing the randomest of thoughts, interests and ideas without having to worry about what others may think (of course, this applies to only those of us who are affected by others’ views. For the lucky few who give a fig about what others think, life, for the most part, is a bed of roses).

These random thoughts seem to have a pattern to them, in that, they occur when you least expect them; I say so because they seem to come to the fore when your mind tries to focus on something else important and precious at hand. The mind then, being boundless in its capacity, stores this random thought at the back so that it may be mulled and chewed over at leisure.

One such random thought which occurred to me when I was in Divine presence, is the striking similarity in certain critical aspects between the lives of Gandhi (oh not Rahul or HRH "Madam" Sonia, but Mohandas Karamchand, the “original” Gandhi) and Bhishma (of Vyasa’s epic poem “Mahabharata”), Jinnah and Duryodhana (strangely, these two have never needed introductions).

Before I proceed any further, I must clarify that this is not remotely an attempt at sounding philosophical, I have no such pretensions. Rather, this is probably an illustration of how relevant history (I don’t consider it as mythology) can be, according to me, regardless of the age or era we live in.

Let’s begin with a bit of bittersweet trivia. “Mahabharat”, the serial, that grand magnum opus of Baldev Raj Chopra (not the horrendous imitation by Ekta Kapoor. May Lord Balaji Save us from Balaji Telefilms!), is one of the finest products of India’s syncretic traditions. Why? The script of the series was written by two extremely creative and talented individuals who come from different faiths (do I hear someone say antithetical?), but were bound together by art- Dr.Satish Bhatnagar and Dr.Rahi Masoom Reza. I remember these names distinctly having devoured the entire series bit-by-bit, episode-by-episode, for over 7 times now and still counting. (Sometime in the future, I shall write in detail about my obsession with this epic and its brilliant depiction by the Chopras).

A couple of months ago, in the course of a formal rendezvous with certain members of filmdom, we were told that Satish Bhatnagar was afflicted with the disease most common to his ilk- penury. Apparently, he was or still is in such a pitiable condition that he barely has the resources to make ends meet, leave alone afford his medical expenses.

To my joy, it was revealed that Bollywood’s so-called “brat” Salman Khan had come forward to put Dr.Bhatnagar out of his misery. Indians, most of us, for all our vaunted culture of giving, really have no sense of philanthropy or gratitude.

Guess that’s enough trivia for one post. Moving to the heart of the discussion, what parallels can be drawn between the lives of the “characters” in question? Let’s begin on a macabre note- their deaths. None of them had peaceful deaths (Sanskrit beautifully calls a peaceful death “Anaayasa Maranam”- when people pass away in their sleep), barring probably the exception of Bhishma who saw his life’s dream being achieved, and he passed away in the presence of the One he worshipped- Krishna. 

But then even Bhishma did not live long enough to enjoy the fruits of his life’s penance, which is something Gandhi had in common with him. Further, while Bhishma was killed by someone he dearly loved, Gandhi too was assassinated by one of his people.

Both these individuals were known for their indomitable will power and also, their legendary (and at times controversial) obsession with their life-long vows of celibacy. Both saw celibacy as a condition precedent to achieve their personal and social objectives. 

While Bhishma saw celibacy as a way of pleasing his father and abdicating his claim to the throne in favour of his future step-brothers, Gandhi strongly felt that if he could master his senses and carnal instincts, he could wrest for India its independence from the British. While the former had to face taunts of being a eunuch, the latter was derogated as being “hypersexed”.

If Bhishma felt thoroughly helpless before Duryodhana’s arrogance, dogged obstinacy and intransigence towards mending fences with his cousins, Gandhi thoroughly failed in convincing Jinnah about the futility and dangers of the idea of Pakistan. If Bhishma’s motherland had to suffer partition to satisfy Duryodhana’s insatiable hunger for power, Gandhi had to bend backwards to placate Jinnah and yet had to remain a hapless spectator to the bloody spectre of Partition.

If Bhishma had to pay the price for his undying allegiance to his vows with his life, Gandhi too had to do the same. If one of the strongest causes of the Mahabharata war was the outrage to Draupadi’s modesty, the cause which propelled Gandhi was what he saw as outrage to his Motherland’s modesty. Or some might say that Gandhi had to pay with his life for the outrage of the modesty of the women of one community.

What about parallels between Jinnah and Duryodhana? Most of the similarities have come out above, but what remains to be pointed out are again their deaths. Jinnah died of tuberculosis and Duryodhana died a gruesome death bleeding on the battlefield fending away nature’s scavengers.  

Is there a point behind these comparisons? What is the moral of these lives? Holding on to one’s values is not the same as holding on to one’s vows because after a point, it becomes difficult to ascertain if these vows have come to represent a person’s values or his ego or worse, his fixation with his image in the eyes of those around him.

Why do I say this? In their final years, both Bhishma and Gandhi felt powerless and helpless for none paid heed to their words and they felt like mere props or relics from the past whose presence was needed to further certain vested interests. This leads us to wonder if Gandhi's fasts were his way of reinforcing his place in the larger scheme of things, and if they had the incidental effect of bringing about peace and amity between rioting factions.

It cannot be disputed that holding an entire nation to ransom with threats of fasts-unto-death reflects nerves of steel, but if it has the effect of rendering secondary the interests of the nation, it is best to turn a blind eye to such not-so-selfless displays of will-power.

On a lighter note, does God run out of ideas at times? What else would explain the oft-quoted dictum “History repeats itself”?   

Scope of Revisionary Powers of a High Court

Section 115 of the Code of Civil Procedure has figured in quite a few judgments, although it is worded in a reasonably clear fashion. The provision has been explained in great detail in a judgment delivered by the Supreme Court in Khanna v. Dillon. Let’s take a look at the provision:

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court, except where such suit or other proceeding is stayed by the High Court.

The underlined portions of sub-section 1 are instrumental in understanding the true scope and use of the provision. First, it is established that the power of revision is vested only in the High Court. Second, it states that the Court may call for records suo motu or on the application of a party. Third, it is borne out that the records of any Court sub-ordinate to the High Court may be called for. Fourth, such powers of revision may be invoked only in cases which have been decided. Fifth, it may be invoked only in cases in which no appeal lies thereto.

The import of the first three limbs is that the High Court exercises its power of supervision over subordinate Courts in invoking its revisionary powers under the Code. The import of the fourth limb is that an application for revision may be made only after a case has been decided.

As for the fifth limb, this is the one usually perceived as the most ambiguous. It states that a revision may be sought only in cases “in which no appeal lies thereto”. The word “thereto” has been used for a reason; it is to convey that only in situations where an appeal cannot be filed before the High Court, a revision may be filed.

Stated otherwise, where the High Court may be approached through an appeal, be it the first appeal or a second one under Section 100, the High Court is barred from entertaining a revision application. This is because if the High Court may be approached in either the first or second appeals, then the questions sought to be posed in a revision application may be raised validly in the appeal as well. Therefore, since such questions may be placed before the High Court in appeal, there is no need to provide a party with an additional provision in the form of a revision application.

This provision has often been wrongly interpreted by parties to mean that since an appeal may lie from a decision before a higher appellate authority which is subordinate to the High Court, a revision may not lie before the High Court. In other words, when an appeal before an appellate forum (which is subordinate to the High Court) is available to a party, it is not entitled to seek a revision.

This is patently wrong because the High Court derives its powers by virtue of it being vested with supervisory jurisdiction which it may use to set aside a decision of a sub-ordinate Court on grounds of jurisdiction. This is evidenced from the limited circumstances detailed in sub-section 1 which refer to lack of jurisdiction or transgression of powers by a Court sub-ordinate to the High Court.

The next question is, is a Single Judge of the High Court subordinate to the High Court? It has been held that a Single Judge is not sub-ordinate to the High Court and there shall not lie a revision from his decision. This is also because a letters patent appeal is already available to a party aggrieved by the decision of the Single Judge.

If an appeal normally lies before the High Court either as a first appeal or a second appeal, and the right to file such appeal has expired on grounds of limitation, can a party validly rely on section 115 to file a revision instead of the appeal? This is possible because the section speaks of situations where an appeal does not lie and this could be on account of any reason, including unavailability of the right to appeal on grounds of limitation.

Can the decision of a High Court in a revision application be challenged? If yes, how? A decision or order of the High Court in a revision application is not an appealable order under Order 43 of the CPC nor can it be appealed as a decree (under Sections 96 or 100) because the order of the High Court in the revision application is not a decree. Therefore, for a remedy against the order of a Court under Section 115, one has to look beyond the CPC. This would mean the Constitution, but would it be Article 226 or 227?

Article 227 vests the Court with supervisory jurisdiction which it can exercise over subordinate Courts. Since we have already concluded that the High Court is not subordinate to itself, I am assuming Article 226 would be the right provision to invoke in such situations. Of course, I am not very sure of this conclusion, but it seems plausible. I shall continue the discussion in another post soon with a discussion of this judgment of the Supreme Court.

Inherent Powers of the Court: When Can They be Invoked?

Section 151 of the Civil Procedure Code (CPC) is probably one of most frequently (ab)used(?) provisions and is more often than not, the one provision that saves our (blackcoats’) rears. Sometimes we use it to push through an application before the Court, blissfully ignorant that the CPC specifically provides an express provision to move such an application. Does this go against the structure of the Code? To find an answer to this, I thought I might as well spend some time understanding the “metes and bounds” of Section 151.

There’s this 1983 judgment of the Gujarat High Court delivered in the case of In Re Shri Ambica Mills which sets out the limits of Section 151 in great detail and I think it’s a must read for those who intend to understand the CPC better.

The factual matrix is interesting and helps one understand the reasons for decisions taken by counsels and how the Court sees through some of them.

Facts

In this case, an application was made under Section 151 of the CPC read with Rule 9 of the Companies (Court) Rules, 1959 invoking the inherent powers of the Court to have certain remarks expunged from the judgment of the same Court in an earlier company petition.

The applicants were the managing directors of the company Shri Ambica Mills. The earlier company petition was moved by the company under Section 101 of the Companies Act to get an order confirming the reduction in its equity share capital. The presence of paid-up capital which exceeded the needs of the company was cited as the reason for the decision to reduce the share capital. To this end, a resolution with three quarters majority had been passed by the shareholders of the company.

However, this petition was opposed by a certain group of shareholders whose objection to the reduction in the share capital was that the entire scheme was a humbug, aimed at serving the private interests of the 3 managing directors (MDs), who were brothers. The company petition was accordingly dismissed relying on the said objections.

Prior to moving the 151 application by the MDs, the company had already preferred an appeal before the Division Bench of the High Court which had been admitted too. The MDs i.e. applicants in the instant case, too had filed for a stay order on the decision of the Single Judge of the HC dismissing the company petition.

Subsequent to the application for a stay order, the 151 application was filed to seek expungement of certain remarks in the earlier order made against the MDs. The contention of the MDs was that they were never given the opportunity of being heard or defending themselves in the earlier petition and consequently, such remarks were unwarranted and unnecessary for the purpose of arriving at a decision in the earlier petition.

Discussion

The Court first delved into the issue of maintainability of the 151 application read with Rule 9 of the Company Rules. (Rule 9 too deals with inherent powers of the Court, so it stands on par with s.151 of the CPC.)

The Court first observed that:

1. S.151 is not to be exercised as a substantive power for it is procedural and

2. Use of inherent powers under s.151 cannot have the object or effect of going against the provisions of the Code, express and implied.

These observations were paraphrased from the celebrated decision of Manohar Lal v. Rai Bahadur Rao Raja Hira Lal Seth (AIR 1962 SC 527). I remember this decision particularly well thanks to the booming voice of Barrister Bimol K. Chatterjee (popularly known as BKC) who taught us the fundamentals of the CPC in Law School.

In this case, the Hon’ble Supreme Court observed with clarity that the reason that s.151 should not be interpreted to contravene the provisions of the CPC was not because the latter controlled the former, but because the other provisions reflected the express will of the Legislature and in its wisdom, served the interests of justice in the circumstances envisaged.

Simply put, to use s.151 to read down the other express provisions would go against the cardinal principle of interpretation of statues- to respect and to give effect to the will of the Legislature.

The Court then considered other alternatives which the MDs could have preferred instead of a 151 application. Order 20, Rule 3 accordingly was given some thought; Rule 3 of Order 20 provides for addition to or alteration of the judgment either under Section 152 or through a review under Section 114 read with Order 47.

To this the counsel for the MDs clarified that he had no intention of invoking the review powers of the Court. The Court contended that if review was not sought, and if an application under 152 does not lie since the case was not that of an accidental slip or arithmetic error, then an application under 151 wouldn’t lie either since the impugned remarks were material to the Court’s findings in the earlier petition.

The Court compared s.151 to s.561 of the CrpC and said that remarks which are material to the Court’s analysis cannot be sought to be expunged. Expungement, according to the Court, is possible only if sweeping observations, which are irrelevant to the case, are made by the Court. Such expungement may be sought by parties to the case or a stranger who has been named by the Court in its remarks.

In this case, since the very allegation against the Company was that the whole scheme of reduction of paid-up capital was a sham to feather the nests of the MDs, it was inevitable for the Court to discuss the conduct of the MDs to decide the case on merits.

Going a step further, the Court discussed certain other alternatives as well; the Court observed that since strangers to a case could not avail of the review option, they could resort to a writ under Article 226 wherein the Court could justifiably exercise powers of review.

In short, what the Court was alluding to was that the 151 application was ruse on the part of the MDs since a review was not possible (as an appeal had already been preferred) and an application under 152 wouldn’t lie here since the case was not that of an accidental error.

In light of the Court’s observations on s.151, there’s another question which I feel must be asked. Section 151 may not be used to contravene other express provisions, but can it be used to supplement them? The answer is in the affirmative since quite a few applications which we move before the Court (like the ones under Order 13) are usually read with Section 151 so as to invoke the powers of the Court if express provisions, although invoked, do not adequately provide for suitable remedies.

Legitimate Expectation in India: Great Expectations

The doctrine of legitimate expectation appears to be an English import, but like most principles of administrative law, I would say that it is subsumed in principles of fairness and reasonableness. So we may have been applying it even before we started calling it the “doctrine of legitimate expectation” (Let’s call it DOLE for short).


But as Courts go, specific precedents are important (I personally would go more by logic and facts, than be bound fastidiously to or by precedents). One prominent case on this doctrine is the judgment of the Apex Court in Bannari Amman Sugars v. Commercial Tax Officer (JT 2004 (10) SC 500).

The facts of this case are as follows:

1. The appellants challenged the legality of a Government Order numbered 989, dated 1.9.1988 which directed the discontinuance of purchase tax exemption in case of mills which exceeded the limit of Rs.3 Crores during the period of 5 years.

2. A further government letter dated 28.12.1988 was also challenged which made the GO applicable retrospectively from 1.4.1988.

3. Writ petitions were filed by the Appellants before the High Court challenging the GO and the letter, subsequent to which they were transferred to the Tamil Nadu Special Taxation Tribunal on its constitution.

4. The Tribunal held the GO and the letter to be violative of the doctrine of promissory estoppel and legitimate expectation.

5. The High Court reversed the finding of the Tribunal. Hence, the appeal before the Supreme Court.

The primary arguments submitted by the Appellant are as follows:

1. It contended that the retrospective application of withdrawal of the purchase tax exemption was directly at loggerheads with DOLE.

2. It was the case of the Appellant that the material submitted before the Court to prove public interest in the withdrawal of the tax exemption was not disclosed or relied upon in the pleadings nor were they shared with the Appellant.

The gist of the State’s counter to these arguments is as follows:

1. The Appellant had failed to establish that the tax exemption offered by the Govt. had induced the Appellant in setting up any business or enterprise.

2. Also, the counsel for the State pointed out that the exemption was offered only to co-operative and public sector sugarcane industries in the form of an annual subsidy equal to the amount usually charged as purchase tax. Since the Appellant did not fall under either category, it was not entitled to the exemption in the first place.

3. The business of the Appellant was set up prior to the notification of the exemption and that the Appellant had subsequently requested the Government to treat the Appellant on par with the actual beneficiaries of the exemption i.e. co-operative and public sector sugar units.

4. Further, according to the State, no benefit is intended or can be expected to last in perpetuity, so merely because a benefit had been extended, its retraction by the Govt at a later point of time cannot be said to attract DOLE.

5. Besides, any such exemption can be legitimately revoked on grounds of public interest, such as loss of valuable tax revenues or dire need of such revenues to maintain the Govt’s machinery.

The long and short of the State’s counter was that a certain promise made by the Govt/ can be legitimately changed if such change is imperative in light of altered circumstances. From these arguments, the core logic behind DOLE comes out to a very large extent.

I think the doctrine of legitimate expectation, only on the face of it, is an English import. Its genesis and application in England was and is easier thanks to the absence of a written Constitution. But in the Indian context, it must be seen as a home-grown extension of the applicability of doctrine of promissory estoppel, enshrined in Section 115 of the Evidence Act, 1872, to public-private relations, better known as the realm of public law.

Although it has the effect of toning down the formal rigours of Article 299 of the Constitution, which requires execution of Government contracts by the President of India, it is, nevertheless, a principle of equity and fairness justifiably read into the Article, whereby the Executive is held accountable to any promise made by it in any form, which induces or has the effect of inducing any reasonable member of the public into undertaking a certain action or enterprise, which action or enterprise would be to the member's detriment in the absence of such an Executive promise.

Simply put, the doctrine mandates that the Executive keeps its word to the public or a particular class of the public.

This is the sum total of the logic adopted by the Supreme Court to elaborate on DOLE. The Apex Court started off by tracing the origins of DOLE from the case of Central London Property Trust Ltd. v. High Trees House Ltd. (1947). Explaining DOLE, it stated thus:

“Where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. But that principle does not create any cause of action, which did not exist before; so that, where a promise is made which is not supported by any consideration, the promisee cannot bring an action on the basis of that promise.”

The above underlined portion appears somewhat contradictory because the promise made, and its subsequent renegation by the promisor i.e. the State, forms the basis of writs filed in such cases. If there can be no cause of action arising from the State’s denial of such a promise, then does it not become a mere privilege extended by the State at its pleasure? 


Isn't this what we often refer to as arbitrariness since Executive decisions can be anything but arbitrary, and their application or revocation cannot be subject to the vagaries of the Executive’s fickle mood. But the Court explained in the later part of the judgment that this was not so.

It went on to explain the origins of the desi avatar of DOLE; it referred to its own decision of 1968 delivered in the case of UOI v. Indo-Afghan Agencies Ltd. In this case, it was held that although Section 115 of the Evidence Act, which speaks of promissory estoppel, is not applicable in cases like these, a party could still expect the Govt to make good on its promise, even if such promise was not made in the manner required by Article 299.

In short, the Court was of the opinion that DOLE is neither in the realm of contract nor completely in the realm of estoppel, but is more in the nature of a principle of equity whose purpose is to serve the ends of justice/public interest by adhering to the spirit of the law sans its formal rigours.

Applying this to the facts of the case at hand, it said no vested right towards receiving tax exemption was created. The exemption was a mere concession which no reasonable man can expect to continue for eternity. DOLE could have been invoked had the enterprise of the Appellant been established based on the representation of the Govt.

The Court further clarified that DOLE may alone be sufficient to establish locus standi in a given case despite the absence of a substantive statutory or constitutional right. In a way, according to Court, this widened the envelope of judicial review whereby policy decisions, which were considered sacrosanct and free from judicial review, could be reviewed and even chastised, albeit to a limited extent.

Explaining the observation in the High Trees case, the Court said that DOLE did not guarantee an immediate relief or even, for that matter, a very sure ground for a claim, but only made it incumbent upon the Executive to justify its policy flip-flops.

In other words, the Court admitted that DOLE still did not permit the Judiciary to question the logic behind Executive’s policy choices, but only allowed it to haul up the latter when it displayed signs of arbitrariness in implementing such policies. Therefore, according to it, DOLE is a corollarial construction of the essential requirement of fairness embedded in Article 14.

On the basis of these reasons, the Court held that the Appellant was not entitled to claim application of DOLE in this case, but the Court did remand the case back to the High Court on technical grounds saying the HC had considered material which was only produced before the Court but was not pleaded by the State.

This judgment is a must read for all those who intend to understand administrative law better. It does have a Krishna Iyer-esque quality to it.

As regards DOLE, the doctrine may be seen as yet another tool of judicial hyper-activism by the school of Constitutional law which swears by strict interpretationism, however, so long as it does not have the effect of unduly undermining the written word of the Indian Constitution, and furthers the cause of public interest, it must be welcomed with open arms to instil a sense of responsibility and accountability in the decisions of the Executive.